1814526 (Refugee)

1814526 (Refugee) [2023] AATA 4436 (10 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Chit Thian Chua
CASE NUMBER: 1814526

COUNTRY OF REFERENCE: Vietnam
MEMBER:Nathan Goetz
DATE:10 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2023 at 11:52am
CATCHWORDS
REFUGEE – protection visa – Vietnam – no Convention claims – Australian partner – Australian citizen child – family medical condition – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 415, 417, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant was represented in the review by an Australian legal practitioner.
BACKGROUND
On 8 December 2010 the applicant was offshore and was granted a Student (TU-573) visa. The applicant arrived in Australia [in] December 2010 on the Student visa.
On 13 September 2011 and 14 October 2011, the applicant was given non-compliance notices in relation to her Student visa. On 10 December 2011 the applicant’s non-compliance notice was finalised with no further action taken.
On 13 April 2012 the applicant was onshore and lodged an application for a Combined Partner (UK-820/BS-801) visa.
[In] October 2013 the applicant departed Australia and arrived back in Australia [in] November 2013 on her student visa.
[in] November 2013 the applicant departed Australia and arrived back in Australia [in] December 2013 on her Student visa.
On 24 December 2013 the applicant was onshore and was granted a Partner (temporary) (UK-820) visa. Her Student visa ceased.
On 21 May 2014 the applicant’s Partner (BS-801) visa application was refused.
On 28 April 2014 the applicant lodged an application with the Migration Review Tribunal for review of the Partner (BS-801) visa refusal decision.
[In] November 2014 the applicant departed Australia and returned [in] December 2014.
On 9 April 2015 the applicant’s review of the Partner (BS-801) visa refusal decision was withdrawn.
On 14 August 2017 the applicant lodged an application for a Protection (XA-866) visa. On 9 May 2018 the applicant’s Protection (XA-866) visa application was refused and on 18 May 2018 she lodged an application with the Tribunal for review of the refusal decision. It is this decision that is the subject of this decision record.
On 21 June 2021 the applicant wrote to the Tribunal by email and asked the Tribunal to ‘refer the review’ and ‘remit the matter’ to the Minister to exercise powers under s 417 of the Act.
On 23 February 2023 the applicant, through her representative, wrote to the Tribunal and consented to the Tribunal making a decision on the review without the Tribunal holding a Tribunal hearing. In these circumstances, the Tribunal has no power to hold a Tribunal hearing: ss 425(2)(b), 425(3) of the Act.
The review was constituted to the Member on 4 October 2023.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Identity and country of reference
In the protection visa application form signed on 14 August 2017, the applicant identifies that she was born on [date] in Kien Giang, Vietnam and is a female citizen of that country. She does not claim citizenship of any other country or the right to enter and reside in a third country.
She provided a copy of a Vietnamese passport issued [in] 2010 with her name in support of her identity and citizenship.
She identified that she is in a de facto relationship with [her partner], who she identified as an Australian citizen residing in Australia and that she has a daughter [who] was born on [date] in Australia.
Concession that the applicant does not meet the requirements for the grant of the visa
In the protection visa application form, the applicant indicated that she was raising her own claims for protection. She wrote that she left Vietnam to study, that she can no longer live in the country, did not experience harm in Vietnam because ‘the situation did not exist’ and believed that the authorities in Vietnam cannot help her.
She indicated in her form that that she would provide ‘my full life story and supportive evidences’ at a later date, but did not do so.
On 9 November 2017 the delegate wrote to the applicant and requested she provide more information detailing all the reasons why she was seeking protection in Australia. In a written response dated 6 December 2017, the applicant wrote the following:
“I am writing to you to inform you about my situation.
I am now in relationship with an Australian Citizen and we have child in common. She is [age range].
Since my husband and my child are depending on me, I hope that I can stay in Australia to take care of my family.
Also, I have been in Australia for too long, It would be very hard for me to go back to the country.
I hope that you would consider my situation and allow me to stay in Australia with my family.
I am gathering documents to prove to you about my situation and I will forward them to you as soon as I have it.”
On 9 October 2023, in response to correspondence from the Tribunal, the applicant through her representative wrote to the Tribunal and conceded that she did not meet the criteria under s 36(2) of the Act to be granted a protection visa.
This followed on from a submission from the representative on 1 September 2023 where the Tribunal was advised that the applicant’s de facto husband is suffering from Stage III advanced [cancer]. He is worried about the applicant’s visa application and would like the matter to be referred to the Minister for Ministerial Intervention as soon as possible. He wants his wife to be able to stay in Australia to take care of him and take care of their young child if he were to pass away.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a member of the same family unit as a ‘refugee’ or person who meets the requirements for ‘complementary protection.’
For the following reason, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts that the applicant is a female citizen of Vietnam who has no other citizenship or right to enter and reside in a third country. The Tribunal makes this finding based on the production of the applicant’s Vietnam passport and the absence of any evidence contrary to her claim about lack of other citizenship or right to enter and reside in a third country.
Therefore, the country of reference for the purpose of the protection visa assessment is Vietnam.
Based on the concession by the applicant that she does not meet the criteria for the grant of the protection visa, the Tribunal makes the following findings:
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Vietnam because of her race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.
The Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
REQUEST FOR MINISTER TO EXERCISE POWERS UNDER S 417 OF THE ACT
Section 417 provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 of the Act another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances: s 417(7) of the Act.
In the Tribunal’s assessment, the Tribunal should not do anything other than determine whether the applicant satisfies the criteria for the grant of a protection visa because the Tribunal’s role is not to be an advocate for either the applicant or the delegate. The Tribunal should restrict itself to consideration only of whether the criteria for the grant of the visa is met.
The applicant can request the Minister to exercise powers under s 417 of the Act herself.
Nathan Goetz

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4436

10 October 2023

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